6 Nuances of Disability Discrimination Law in California

Under California state law, workers with a disability are protected against several forms of discrimination in employment practices. Employers subject to this legislation cannot base employment decisions like hiring, firing, promoting, paying, or training on an employee’s disability status. Moreover, employers are legally obligated to make reasonable accommodations for workers who have a disability so that they can perform their job duties. Employees who are protected under state law include those who suffer from physical and mental disabilities, as well as medical conditions. Physical disabilities include physical impairments affecting a major bodily system and limiting a major life activity. Some conditions have been explicitly named as protected under state law: blindness, deafness, missing limbs, mobility impairments requiring wheelchair use, cerebral palsy, and episodic or chronic conditions like epilepsy, seizure disorder, diabetes, multiple sclerosis, HIV/AIDs, hepatitis, and heart/circulatory disease. Mental disabilities in this context include mental or psychological conditions that limit a major life activity (e.g. autism, bipolar disorder, obsessive compulsive disorder, clinical depression, cognitive disabilities, etc.). Medical conditions refer to genetic characteristics associated with a disease or health impairment related to a diagnosis of cancer; they often come up in disability discrimination because of increased risk of future medical issues. These definitions may seem vague or unclear, giving a glimpse into how complicated disability discrimination law can be. Let’s look at a few things that are good to know about the coverage and limitations of disability discrimination law in California.

1. California law specifically excludes particular mental health problems

            While California law has broader protections for workers with a disability than federal law, there are explicitly excluded categories of mental health problems that are not protected at all from discrimination in employment practices. These include compulsive gambling, kleptomania, pyromania, and particular sexual behavior disorders, including pedophilia, voyeurism, and exhibitionism. Additionally, substance abuse disorders resulting from the current, unlawful use of drugs are not protected. Consequently, discrimination based on any of these problems is legal.

2. Mild, temporary disabilities are not protected

            This probably makes intuitive sense to most people. What it means is that employees suffering from conditions that have minor or no long-term effects do not qualify as a protected class. For instance, Perry has the flu. He asks his boss for a reasonable accommodation to his temporary disability in the form of a week off of work. His boss tells him he can use sick days. This example illustrates that it really wouldn’t make sense for colds, flus, and the like to allow people special accommodations when there are alternative ways to deal with those relatively mild problems. Other conditions not protected include sprains, muscle aches, bruises, soreness, minor scrapes, non-migraine headaches, and minor gastrointestinal disorders that are not chronic. If employers want to fire someone for getting the flu, they can technically do that, assuming at-will employment, and most courts will not cry foul unless the sick person had a pretty severe reaction. 

3. Reasonable accommodations must be, well, reasonable

            Yes, employers must make reasonable accommodations for employees with disabilities. What does that mean exactly, though? “Reasonable” in this context means the accommodation does not impose an undue hardship on the employer. Undue hardships would involve substantial expense and difficulty for the employer and can be determined by looking at things like the employer’s financial resources, the size of the business, the nature, and cost of the necessary accommodation, and the impact the accommodation is likely to have on the employer’s business operations. Given that, it is usually possible for employers to come up with reasonable accommodations. Installing ramps, providing screen reader software or closed captioning at meetings, printing materials in large print, and adjusting work schedules are all examples of common, relatively simple solutions to problems posed by certain disabilities.

4. Employers who do not know cannot be held liable 

            Employees with a disability typically have a responsibility to make their employer aware of any need for accommodations. Legally, employers cannot be held responsible for discriminating based on disability if they were unaware of the disability. For instance, employers are not liable for failing to accommodate someone they did not know needed to be accommodated. Most employees with disabilities who might need reasonable accommodation should inform their employer about their condition, assuming the disability and limitations are not very obvious. It is a good idea for employees to give notice of their disability in writing, whether through email, text, or dated letter. Documenting this notice can protect the employee later if the employer tries to deny knowledge of it. Sometimes, employees must provide medical documentation confirming their disability or need for accommodation and in those cases, failure to do so can preclude any claims of illegal disability discrimination.

5. Some employers must accommodate people suffering from alcoholism and/or drug addiction

            Employers with 25 or more employees must provide reasonable accommodations for employees with addictions to drugs or alcohol. However, employees are only eligible if they voluntarily enter and participate in a drug or alcohol rehabilitation program, which the employer must permit as long as the leave of absence would not pose an undue hardship. The period of leave is unpaid unless the employee uses accrued leave, like sick days. Moreover, the employer has a duty to try to protect the privacy of any employees who do choose to participate in the rehabilitation program. These protections only extend so far, though. Employers are within their right to discipline or fire employees who show up to work under the influence of drugs or alcohol, as well as employees whose performance is negatively affected by their alcohol or drug use.

6. Mixed-motive claims can get tricky

            If an employer takes an adverse employment action against an employee and part of the reason is based on said employee’s disability or the employer’s perception of a disability, then that should be grounds for a successful discrimination lawsuit, right? Well, not exactly. If there were multiple motives the employer had in taking the action and they were not all discriminatory, then the law gets a little more complicated. An employer might have legitimate reasons to fire an employee with a disability that are unrelated to the disability. In mixed-motive disability discrimination cases, the discriminatory intent must be a “substantial motivating factor” in the adverse employment decision. If an employer can show that a legitimate, non-discriminatory motive by itself would have led to the same decision, then their liability is significantly reduced.

            Clearly, there are many nuances of the law when it comes to disability discrimination. Because the law can be so complicated, employees who think they have a claim or want to understand their rights better are urged to contact a discrimination attorney. Together, they can work towards equality for people of all abilities

4 Factors Considered in the Creation of a Hostile Work Environment

What does it take to transform a simply annoying work environment into a sexually harassing hostile work environment? In order to answer this question, it is important to look at all of the circumstances together. There are four primary factors that are considered when looking at the totality of the circumstances. For your knowledge, these four factors are described in this article, although it is important to note that no single factor is required for a work environment to be deemed hostile. If you think you might have a claim for sex discrimination in the form of a hostile work environment, contact a discrimination attorney as soon as you can to figure out what you can do about your situation. 

1. The frequency of discriminatory conduct
   Sometimes, work environments can be deemed hostile because of how pervasive the inappropriate behavior is. Incidents of abusive conduct have to be sufficiently concerted and continuous to be considered pervasive. An isolated inappropriate sexual remark made to a co-worker would not be enough to make a claim of sexual harassment, for example, as was supported by the case, Clark County School District v. Breeden. There are several examples of cases where the plaintiff has not succeeded because the inappropriate behavior was not considered pervasive. In one case, Brennan v. Townsend & O’Leary Enterprises, Inc., the plaintiff alleged that there were four incidents that occurred over four years involving three different employees, and two of the incidents were at Christmas parties that were off of work property. In this case, it was ruled that the evidence did not constitute a concerted pattern of harassment. On the other hand, in Hostetler v. Quality Dining, Inc., only three incidents were considered enough to create a hostile environment. However, in that case, all three incidents happened in one week and included a forced French kiss, a crass comment, and an attempt to unfasten the plaintiff’s bra. While frequency is an important factor to consider, sometimes a single incident is sufficient to establish a hostile environment claim. However, in those cases, the incident must be quite severe.
2. The severity of discriminatory conduct
   Severity is one of the other four primary factors that must be considered in hostile environment claims. As mentioned, a single incident can show a hostile environment if it is very severe. For example, physical groping qualified in the case of Myers v. Trendwest Resorts. Physical assault or the threat of physical assault can also be sufficient in isolation, as seen in Hughes v. Pair. In cases like those, the employer can be held liable if their response does not quickly and effectively eliminate the problem (e.g. removing the harasser from the workplace). For example, a single incident of sexual assault followed by inaction on the part of the employer can mean trouble for that employer, as seen in Doe v. Capital Cities and Lockard v. Pizza Hut, Inc. This can be true even when the assaulter is not an employee. Employers can be held liable for their conduct following severe harassment by a third party, such as a client. This was the case in Little v. Windermere Relocation: an employee was drugged and raped by a client and when the employer found out, he cut her pay and told her to move on and clean out her desk after she protested the pay reduction. The plaintiff claimed her employer had made the work environment hostile with his reaction, and the Ninth Circuit agreed with the logic of her argument that the employer’s response following a single, severe incident can be grounds for a hostile work environment claim. In general, the more pervasive the conduct, the less severe it has to be, and the more severe the conduct, the less pervasive it has to be, to be considered a hostile environment. 
3. Whether or not conduct is physically threatening or humiliating or a mere offensive utterance
   In claims of a hostile working environment, it can be helpful for a plaintiff to show that there was some sort of negative effect on their psychological well-being, which could be produced by a physical threat, for example. While this kind of evidence of psychological injury is relevant and helpful, it is not necessary for a plaintiff to demonstrate that they suffered a psychological injury as a result of the sexual harassment. This was upheld in Harris v. Forklift Systems, Inc.
4. Whether or not conduct unreasonably interferes with an employee’s work performance
   Lastly, it is important to consider if the harasser’s abusive conduct was so severe or pervasive that it actually altered the work environment. In one case, Westendorf v. West Coast Contractors of Nevada, Inc., the plaintiff alleged a violation of Title VII based on her supervisor’s sexual remarks to her at work on four occasions over a three-month period. For example, he told her that she needed to clean a trailer in a French maid uniform and asked if women “got off” using a specific type of tampon. She was also asked by the supervisor and another co-worker if she was intimidated by another woman’s breast size, a woman they called “Double D.” The court decided that these remarks were not severe or pervasive enough to alter the plaintiff’s terms of employment under Title VII. A similar case came to the same conclusion but under California’s Fair Employment and Housing Act (FEHA). In this case, McCoy v. Pacific Maritime Association, the plaintiff’s coworkers made offensive and inappropriate remarks in her presence fewer than ten times across four months. These incidents included shouting and calling the plaintiff “stupid,” making crass comments about female employees’ buttocks, and making crude gestures towards an employee once her back was turned. The court decided that the comments, which were not generally directed at the plaintiff, were not so severe or pervasive that they changed the conditions of her employment.
   Every situation is different and has its own nuances. Sometimes, one court will disagree with another on the facts or legal standards to employ in a given case. For that reason, it is very important when considering litigation for sex discrimination to speak with an experienced employment attorney, who can navigate the common pitfalls and obstacles posed by such cases and give you a better chance at getting justice.

1. Drug testing in some cases
   Job applicants can be drug tested once they have received conditional offers, as long as they are all drug tested and it is not an issue of discrimination. For instance, an employer who only obliges African American applicants to take drug tests as a condition of employment would be in blatant violation of federal and state discrimination laws. For most jobs, random drug testing of current employees is typically considered unreasonable. Exceptions, of course, do exist and include employees who work in safety or security sensitive roles. Employers who have reasonable suspicions about illicit drug use can do a drug test; it is random ones that are unannounced and not previously consented to that are most problematic. Employers should have written policies about drug testing, which can be important to set employee expectations (recall that it is illegal for employers to violate their employees’ reasonable expectations of privacy).
2. The imposition of medical exams or questions about medical information
   Employers are not allowed to discriminate based on medical condition or disability status. To this end, they generally cannot oblige employees to disclose the medications they are taking or to provide information about the internal state of their body. Generally speaking, employers cannot ask job applicants to reveal confidential medical information or to submit to medical examinations. However, once a job offer is made, an employer can make it conditional upon you passing a job-related medical examination (e.g. a fitness test for a firefighter that assesses specifically job-related duties). Of course, that means all entering employees in that kind of position must be required to do the same. One person cannot be singled out due to the employer’s belief that they have a disability, as that would be illegal discrimination. Additionally, even if a disability is revealed during such a medical exam, if the individual can perform the essential functions of the job with a reasonable accommodation (one that does not pose an undue hardship on the employer) then the employer cannot refuse to hire them.
   Moreover, medical records that an employer might have about employees for health insurance claims, workers’ compensation claims, or disability or medical leaves must be kept confidential. Your boss cannot go around telling all your coworkers that you have diabetes, for instance, if you only told your boss because you needed to take leave because of it and do not want that information shared with others. It is best for employers to keep medical documents separate from personnel files and kept in a secure location that only designated staff members can access.
3. Invasions of privacy related to social media
   With the pervasiveness of social media in today’s world, it is likely no surprise that privacy concerns can be a huge issue for people who use it. Most employees do not want their bosses snooping on their social media accounts. Where else would they complain about their micromanaging and silly habits? To help address this issue, California enacted Labor Code Section 980 in 2013. Generally, it limits employers from accessing employee social media. The law bars employers from asking or demanding that an employee or job applicant do a few different things. For example, your boss cannot request or order that you tell them your username or password so they can access your personal social media. Your boss also cannot require you to access your social media accounts in their presence (they don’t need to see that you complained about them twice last week!). Employers also cannot retaliate against an employee for refusing access to personal social media. However, employees who do not want their employers looking at their information online should ensure that their privacy settings hide their information from people who they have not explicitly granted access to (e.g. Facebook friends).
   A related issue that comes up in the context of discrimination is employers using social media and having access to information that they are not legally permitted to use in the hiring process, like age/race/sex. Wittingly or unwittingly, people who make hiring decisions may discriminate against people based on membership in protected categories if they look up the social media profiles of applicants. Even if only your profile picture is available to the public, that can still tell employers your approximate age, gender, and race, which could bias their decisions. To avoid this problem, employers should employ a hiring system that erases the problem. For instance, a third party could be asked to look up the social media profiles of applicants and scrub all the details about things employers are not allowed to ask of applicants and then give only the relevant details to the person or people making hiring decisions.
   Do any of these situations sound familiar to you? If so, you may be a victim of a workplace privacy violation. If you think your reasonable expectations of privacy in the workplace have been violated or you have been wronged at work in some other way (e.g. discriminated against, sexually harassed, or retaliated against for protected activity), you may want to contact a wrongful termination attorney to see what you might be able to do about your situation.

5 Nuances of Disability Discrimination Law in California

Under California state law, workers with disability are protected against several forms of discrimination in employment practices. Employers subject to this legislation cannot base employment decisions like hiring, firing, promoting, paying, or training on an employee’s disability status. Moreover, employers are legally obligated to make reasonable accommodations for workers who have a disability so that they can perform their job duties. Employees who are protected under state law include those who suffer from physical and mental disabilities, as well as medical conditions. Physical disabilities include physical impairments affecting a major bodily system and limiting a major life activity. Some conditions have been explicitly named as protected under state law: blindness, deafness, missing limbs, mobility impairments requiring wheelchair use, cerebral palsy, and episodic or chronic conditions like epilepsy, seizure disorder, diabetes, multiple sclerosis, HIV/AIDs, hepatitis, and heart/circulatory disease. Mental disabilities in this context include mental or psychological conditions that limit a major life activity (e.g. autism, bipolar disorder, obsessive compulsive disorder, clinical depression, cognitive disabilities, etc.). Medical conditions refer to genetic characteristics associated with a disease or health impairment related to a diagnosis of cancer; they often come up in disability discrimination because of increased risk of future medical issues. These definitions may seem vague or unclear, giving a glimpse into how complicated disability discrimination law can be. Let’s look at a few things that are good to know about the coverage and limitations of disability discrimination law in California.

1. California law specifically excludes particular mental health problems
   While California law has broader protections for workers with disability than federal law, there are explicitly excluded categories of mental health problems that are not protected at all from discrimination in employment practices. These include compulsive gambling, kleptomania, pyromania, and particular sexual behavior disorders, including pedophilia, voyeurism, and exhibitionism. Additionally, substance abuse disorders resulting from the current, unlawful use of drugs are not protected. Consequently, discrimination based on any of these problems is legal.
2. Mild, temporary disabilities are not protected
   This probably makes intuitive sense to most people. What it means is that employees suffering from conditions that have minor or no long-term effects do not qualify as a protected class. For instance, Perry has the flu. He asks his boss for a reasonable accommodation to his temporary disability in the form of a week off of work. His boss tells him he can use sick days. This example illustrates that it really wouldn’t make sense for colds, flu, and the like to allow people special accommodations when there are alternative ways to deal with those relatively mild problems. Other conditions not protected include sprains, muscle aches, bruises, soreness, minor scrapes, non-migraine headaches, and minor gastrointestinal disorders that are not chronic. If employers want to fire someone for getting the flu, they can technically do that, assuming at-will employment, and most courts will not cry foul unless the sick person had a pretty severe reaction.
3. Reasonable accommodations must be, well, reasonable
   Yes, employers must make reasonable accommodations for employees with disabilities. What does that mean exactly, though? “Reasonable” in this context means the accommodation does not impose an undue hardship on the employer. Undue hardships would involve substantial expense and difficulty for the employer and can be determined by looking at things like the employer’s financial resources, the size of the business, the nature and cost of the necessary accommodation, and the impact the accommodation is likely to have on the employer’s business operations. Given that, it is usually possible for employers to come up with reasonable accommodations. Installing ramps, providing screen reader software or closed captioning at meetings, printing materials in large print, and adjusting work schedules are all examples of common, relatively simple solutions to problems posed by certain disabilities.
4. Employers who do not know cannot be held liable
   Employees with a disability typically have a responsibility to make their employer aware of any need for accommodations. Legally, employers cannot be held responsible for discriminating based on disability if they were unaware of the disability. For instance, employers are not liable for failing to accommodate someone they did not know needed to be accommodated. Most employees with disabilities who might need a reasonable accommodation should inform their employer about their condition, assuming the disability and limitations are not very obvious. It is a good idea for employees to give notice of their disability in writing, whether through email, text, or dated letter. Documenting this notice can protect the employee later if the employer tries to deny knowledge of it. Sometimes, employees must provide medical documentation confirming their disability or need for accommodation and in those cases, failure to do so can preclude any claims of illegal disability discrimination.
5. Some employers must accommodate people suffering from alcoholism and/or drug addiction
   Employers with 25 or more employees must provide reasonable accommodations for employees with addictions to drugs or alcohol. However, employees are only eligible if they voluntarily enter and participate in a drug or alcohol rehabilitation program, which the employer must permit as long as the leave of absence would not pose an undue hardship. The period of leave is unpaid unless the employee uses accrued leave, like sick days. Moreover, the employer has a duty to try to protect the privacy of any employees who do choose to participate in the rehabilitation program. These protections only extend so far, though. Employers are within their right to discipline or fire employees who show up to work under the influence of drugs or alcohol, as well as employees whose performance is negatively affected by their alcohol or drug use.
6. Mixed-motive claims can get tricky
   If an employer takes an adverse employment action against an employee and part of the reason is based on said employee’s disability or the employer’s perception of a disability, then that should be grounds for a successful discrimination lawsuit, right? Well, not exactly. If there were multiple motives the employer had in taking the action and they were not all discriminatory, then the law gets a little more complicated. An employer might have legitimate reasons to fire an employee with a disability that are unrelated to the disability. In mixed-motive disability discrimination cases, the discriminatory intent must be a “substantial motivating factor” in the adverse employment decision. If an employer can show that a legitimate, non-discriminatory motive by itself would have led to the same decision, then their liability is significantly reduced. Clearly, there are many nuances of the law when it comes to disability discrimination. Because the law can be so complicated, employees who think they have a claim or want to understand their rights better are urged to contact a discrimination attorney. Together, they can work towards equality for people of all abilities.

9 Things Job Hunters With a Disability Should Know

1.  Where do my rights come from?

When it comes to disability discrimination, there are a few different sources of rights an employee may use to defend himself or herself from mistreatment.  Depending on what type of employee and employer the scenario involves will determine what body of law to apply.  The Americans with Disabilities Act (ADA), the Rehabilitation Act, and the California Fair Employment and Housing Act (FEHA) are the sources of rights for employees with a disability.  Although all three are very similar, FEHA, unlike the other two Acts, is not a federal Act. This means it applies at a state level and is less likely to be interpreted via federal decisions.  The good thing about FEHA is that provides more protection for employees. 

2.  What legislation provides rights to me specifically? 

The answer is not straightforward and may depend on the facts of the particular case, but the Rehabilitation Act will apply to you if work for a federal agency, a federal contractor, or you receive federal financial support.  You may have rights under the ADA if you are one of more than 15 employees at your job.  However, for those employees at a smaller company, FEHA will protect an employee who is one of five or more employees. 

3.  Are employers required to take into account my disability when hiring?

Affirmative action is a particular type of hiring policy enforced by employers to afford equal opportunities to legally recognized minority groups.  Per the Rehabilitation Act, federal contractors are required to incorporate affirmative action in their hiring practices.  This means an employer must consider an employee’s disability when choosing a candidate to fill a position.  However, employers that fall under the ADA and FEHA are not required to apply affirmative action when hiring. For example, an employer would not be obligated to take into account the fact that an employee belonged to a minority group and hire them as a means of representing an underrepresented group. 

4.  Do I have a legally recognized disability?

  Not all conditions, illnesses, or impairments are identified as a “disability” under the law.  It can be frustrating for some employees of interviewees who are entitled to benefits from the government for their disability because this does not automatically deem he or she as an employee with a disability under the ADA.  An employee or interviewee would need to discuss with an employment lawyer as to whether he or she has a legally recognized disability by a particular Act. 

5.  Are my eyeglasses or contact lenses considered a disability?

  Usually, the law determines whether an employee’s disability is legally recognized which is measured by whether the disability impairs an individual’s ability to carry out a major life activity.  But what about if an employee or candidate has poor eyesight, is that considered as a disability? In most cases, an employee or candidate who has poor vision will only be considered as having a disability if the impairment cannot be corrected with prescription eyeglasses or contact lenses. 

6.  What if my disability requires an interpreter or reader?

  For some individuals who have been professionally diagnosed to have a disability may require a reader or an interpreter.  This may arise if an employee or candidate wears a hearing aid or has a processing deficit.  For instance, an employee may be able to carry out a job but on occasion may need someone to read him or her certain paperwork during an annual training seminar or for a person who is undergoing a test in an interview for a position.  Depending on what legislation is relevant to the particular employee or candidate will determine whether the employer is obligated to provide this kind of accommodation.  If an employer is required to provide this type of accommodation to an employee and in which cases refuses, that employer could be liable for disability discrimination. 

7.  What if my disability is irregular?

  For an employee or interviewee, it can be difficult to explain to an employer that their disability impacts them sporadically. does an employee or interviewee tell their employer that their disability is unpredictable?  In other words, the individual can have periods of being in a well state followed by random spells of their disability impacting their health.  Some examples of this may be HIV, epilepsy, diabetes, or remission for cancer. Flare-ups or a spike of impairment does not mean an employee does not have a disability and should not be entitled to accommodation in the workplace. Disabilities are not always predictable and the legislation recognizes individuals who experience sporadic impairments. 

 In certain situations, depending on the specific disability and how the disability affects the employee or interviewee’s ability to perform key life activities, may be considered a disability under California legislation. 

8.  The name disability is not listed under the legislation

  Just because the medical term used to diagnose your disability is not specified under the legislation or perhaps your employer has never heard of it, does not mean you are not entitled to protection under the legislation. In order ensure that most disabilities are recognized, the legislation does not look to the name of a disability or condition but rather to how it impacts an employee or interviewee’s ability to perform key life activities.  Examples of key life activities include bathing, walling, seeing, hearing, speaking, breathing, etc.

9.  How do I know if I was discriminated against based on my disability?

  Many laws in California protect employees with a disability as well as individuals who are participating in job interviews.  Although the laws are there to provide protection, the laws are complicated so employees may not know their rights and employers may not be abiding by their obligations.  The best way to know if you are being discriminated against by an employer to meet with an employment lawyer who specializes in representing employees against their employers.

A good place to start in your search for a discrimination lawyer would be to search for a firm who offers free consultations. 

2 Challenges Veterans Might Face at Work

Veterans often have difficulties getting hired, in part due to widespread stereotypes and biases against them. Even when veterans get past that first stage and are hired (congrats!), they unfortunately still often have challenges to deal with in the workplace. They might find that they do not love the new job. Maybe their coworkers are cruel, scorning the military, or perhaps the boss is treating them differently than everyone else because of their status as a veteran. If you are a veteran and that sounds familiar to you, you are not alone. Luckily, veteran status is a protected class in California and employers are not allowed to discriminate based on that in the same way they cannot discriminate based on traits like gender, disability, or race. In fact, veterans have additional safeguards under federal and state law, as well, such as the right to reemployment after service with job security for a year for those who meet eligibility criteria. Although legal protections exist, employers and even coworkers can still violate your rights. This article will give a few examples of challenges veterans might face at work to help illustrate what to look out for in the workplace. If your rights are violated, an employment attorney can help you figure out what you can do about it.

1. Harassment from coworkers

One thing that most people can agree on is that doing a job becomes much more difficult when coworkers create an unwelcoming, even hostile, work environment. No one wants to go to work if they cannot count on being respected by their colleagues and boss. Because of negative stereotypes and personal biases, oftentimes people can act very poorly towards veterans, even if they do work with them. Harassment, though, is a form of illegal discrimination and in California, both employers and coworkers can be held liable for engaging in it (or, as an employer, permitting it). To get a sense of what harassment against a veteran could look like, let’s imagine the following:

Nick served in the Marine Corps for four years. When he returned, he was reinstated to his former position as a factory worker, but was let go after a year. After this, he spent a few months searching for a job before finding a place that hired him. His new job is similar to his old one, but he finds himself wishing he could go back to his old job because of his new coworkers. For the first few months at this job, Nick’s coworkers make him the butt of their jokes constantly, even though after the first few weeks, he told them to knock it off. With clear disdain, they make fun of things like his “military posture” and denigrate his morals, saying things like that he has “the blood of a killer.” Nick’s focus is constantly interrupted by anxiety over what he feels is bullying and he comes to detest going to work. Even his blood pressure has increased since starting this job. Eventually, he files a complaint with human resources.

Nick is in what appears to be a very hostile work environment due to the harassment by his coworkers. If nothing is resolved after he notifies the company about the discriminatory harassment, Nick could have a legal claim against his employer for permitting discrimination in the workplace. Note that harassment is not always so obvious; it can also come, for instance, in the form of rumors or inappropriate but not ill-intentioned comments. Regardless of how the harassment manifests, it can be very damaging to the victims and employers must protect their veteran employees from the suffering it can cause.

2. Denial of time off for medical leave

Veterans often suffer from serious health conditions related to their military service. Common conditions include amyloidosis, traumatic brain injury, respiratory cancers, musculoskeletal ailments, and depression. Federally, the Family and Medical Leave Act offers eligible employees under covered employers up to 12 weeks of leave in a 12-month period for a few different purposes, one of which is to deal with serious health conditions. Although this leave is generally unpaid, employees can use accrued paid leave during FMLA leave. This means that for veterans who have accrued paid leave from their civilian job during their military service (under a different federal law), they may be able to get paid time off for a serious health condition upon returning. Let’s look at an example of how a veteran might illegally be denied time off for a serious medical condition:

Tiana returned from military service two years ago. For a year and a half, she has been working full-time at the same big company. She has been diagnosed with clinical depression, which she is taking antidepressants for. Despite this treatment, she begins to notice that, as happened before she was on medication and at this job, she is finding it impossible to sleep, is irritable all the time, and no longer finds interest in her work or hobbies. When she realizes these symptoms of depression are severely interfering with her life and her job, she asks her psychiatrist if her medication might not be working as it should. Tiana is told that she can switch her antidepressants if she would like to, but recommends that regardless of whether or not she wants to take antidepressants, Tiana should take time off from work to do some inpatient therapy. When Tiana requests this time off from work, giving a short but sufficient explanation of why along with her doctor’s note to her employer, she is told that she doesn’t need time off; she just needs to spend more time in the sun.

Tiana’s employer, assuming she is subject to the FMLA, is breaking the law by denying Tiana time off to treat her serious health condition. There is a pervasive stigma against mental health disorders, but they are as debilitating as physical disorders, oftentimes more so, and they are covered by the FMLA. Veterans have increased rates of multiple serious health conditions compared to the general population, so it is important that their rights to treatment and healing time are not violated. Moreover, discriminating against an employee, veteran or not, based on a physical or mental health condition is illegal.

            Serving in the military is anything but a cakewalk. It involves an often highly dangerous job, time away from family, and for many returning veterans, it leads to workplace discrimination and denial of rights that should be afforded to them. With all that veterans have sacrificed for the country, it is well within their rights to speak out against unlawful behavior. If you are a veteran facing challenges like the ones above or you believe your rights have been violated in another way, contact an employment attorney. You deserve respect and fair treatment at work, and an employment attorney can help you get what you are entitled to if you are denied that.

3 Examples of Invasions of Privacy in the Workplace

Unlike other states, California has a special protection of privacy written into its constitution, which says citizens have certain inalienable rights, including “pursuing and obtaining safety, happiness and privacy.” Different statutes also provide specific privacy protections for California employees. For instance, employers cannot demote, suspend, or terminate employees for participating in conduct that is not illegal during off-duty hours (given that the behavior occurs away from the place of work). Employees have the right to sue employers for violating reasonable expectations of privacy, as measured by objective and widely accepted social norms.  This article describes a few of the ways in which employers are not allowed to invade the privacy of their employees. If you find that your legal rights in the workplace are being violated, it is a good idea to consult with an employment attorney, as the law can be complex and difficult to navigate for people who are not experts.

1. Drug testing in some cases

Job applicants can be drug tested once they have received conditional offers, as long as they are all drug tested and it is not an issue of discrimination. For instance, an employer who only obliges African American applicants to take drug tests as a condition of employment would be in blatant violation of federal and state discrimination laws. For most jobs, random drug testing of current employees is typically considered unreasonable. Exceptions, of course, do exist and include employees who work in safety or security sensitive roles. Employers who have reasonable suspicions about illicit drug use can do a drug test; it is random ones that are unannounced and not previously consented to that are most problematic. If you talk to a discrimination lawyer you will find out that Employers should have written policies about drug testing, which can be important to set employee expectations (recall that it is illegal for employers to violate their employees’ reasonable expectations of privacy).

2. The imposition of medical exams or questions about medical information

            Employers are not allowed to discriminate based on a medical condition or disability status. To this end, they generally cannot oblige employees to disclose the medications they are taking or to provide information about the internal state of their body. Generally speaking, employers cannot ask job applicants to reveal confidential medical information or to submit to medical examinations. However, once a job offer is made, an employer can make it conditional upon you passing a job-related medical examination (e.g. a fitness test for a firefighter that assesses specifically job-related duties). Of course, that means all entering employees in that kind of position must be required to do the same. One person cannot be singled out due to the employer’s belief that they have a disability, as that would be illegal discrimination. Additionally, even if a disability is revealed during such a medical exam, if the individual can perform the essential functions of the job with a reasonable accommodation (one that does not pose an undue hardship on the employer) then the employer cannot refuse to hire them. 

Moreover, medical records that an employer might have about employees for health insurance claims, workers’ compensation claims, or disability or medical leaves must be kept confidential. Your boss cannot go around telling all your coworkers that you have diabetes, for instance, if you only told your boss because you needed to take leave because of it and do not want that information shared with others. It is best for employers to keep medical documents separate from personnel files and kept in a secure location that only designated staff members can access.

A professional discrimination attorney can help you to stop discriminating based on a medical condition or disability status

3. Invasions of privacy related to social media

            With the pervasiveness of social media in today’s world, it is likely no surprise that privacy concerns can be a huge issue for people who use it. Most employees do not want their bosses snooping on their social media accounts. Where else would they complain about their micromanaging and silly habits? To help address this issue, California enacted Labor Code Section 980 in 2013. Generally, it limits employers from accessing employee social media. The law bars employers from asking or demanding that an employee or job applicant do a few different things. For example, your boss cannot request or order that you tell them your username or password so they can access your personal social media. Your boss also cannot require you to access your social media accounts in their presence (they don’t need to see that you complained about them twice last week!). Employers also cannot retaliate against an employee for refusing access to personal social media. However, employees who do not want their employers looking at their information online should ensure that their privacy settings hide their information from people who they have not explicitly granted access to (e.g. Facebook friends).  

A related issue that comes up in the context of discrimination is employers using social media and having access to information that they are not legally permitted to use in the hiring process, like age/race/sex. Wittingly or unwittingly, people who make hiring decisions may discriminate against people based on membership in protected categories if they look up the social media profiles of applicants. Even if only your profile picture is available to the public, that can still tell employers your approximate age, gender, and race, which could bias their decisions. To avoid this problem, employers should employ a hiring system that erases the problem. For instance, a third party could be asked to look up the social media profiles of applicants and scrub all the details about things employers are not allowed to ask of applicants and then give only the relevant details to the person or people making hiring decisions.

            Do any of these situations sound familiar to you? If so, you may be a victim of a workplace privacy violation. If you think your reasonable expectations of privacy in the workplace have been violated or you have been wronged at work in some other way (e.g. discriminated against, sexually harassed, or retaliated against for protected activity), you may want to contact an employment attorney to see what you might be able to do about your situation.   

5 Things You Didn’t Know About Being Forced to Quit

                If your boss fires you for an illegal reason you can assume you should call an Employment Attorney to discuss a potential suit against the organization for wrongful termination at the very least, but what if you were forced to resign? Being “forced to quit” or “forced to resign” at first blush sounds a bit out of the ordinary. What does it actually mean to be forced out of your position, and if you actually were forced out, do you still have a claim against your ex-employer?  Usually, if an employee finds themselves in this kind of a situation, he or she may bring a claim for wrongful termination and or breach of employment contract which came out of an employee’s forced resignation.  Below are five things you may not have known about being forced to quit. 
 
 
1.  Being forced out of your job is an actual thing
 
                Being squeezed out of your employment by your employer is a thing, it’s called “constructive discharge”.  The way in which constructive discharge arises is in situations where an employer actively tries to make the particular employee’s employment so unbearable that they are forced to resign or retire which may be a reason to sue for wrongful termination and or breach of their employment contract. 
 
                In order to pursue a claim against an employer for construct discharge, an employee would need to prove it is more likely than not that their employer purposely made the employee’s work conditions unbearable or the employer knew the conditions were unbearable and did nothing to cease further occurrences.  Again, this is something a wrongful termination attorney should analyze in order to decide whether there is a potential claim.

 2. Were you pressured into quitting or resigning?
 
                What factors are taken into account in deciding if an employee really was constructively discharged? Although not an exhaustive list, there are certain features an Employment Attorney will consider in deciding if an employee was constructively discharged.  The features include a reduction in rank, a decrease in pay, decrease in job responsibilities, harassment, including sexual harassment or harassment based on a protected class, and causing extreme humiliation, all of which amounts to forcing the employee to quit.
 
 

3. It’s based on an objective standard
 
                In deciding whether an employee was constructively discharged, the behavior of the employer is observed from an objective standpoint not subjective. This means the employer’s acts are judged based on what a reasonable employee in that particular employee’s position would have found to be intolerable work conditions, not what the particular individual may find to be unbearable. The rationale is to avoid the allowance of overly sensitive employees to make claims but it also does not allow employers to escape a lawsuit even if a particular employee is more tolerant than most.
 
                Keep in mind that in applying the objective view, even if the reasonable employee would find certain treatment to be upsetting or disappointing, those feelings are not enough to amount to an unbearable work environment.
 
                An employment lawyer will be able to apply the reasonable person standard to your situation and tell you if a reasonable employee would likely find the circumstances unbearable.
 
4.  Where is the line drawn?
 
                “Intolerable” or “unbearable” working environments are usually measured by how often the acts in question occur. For example,  the more frequent the conduct or harassment, the more likely it is considered insufferable. Also, employment law will likely classify a work situation as “intolerable” if it is abnormally antagonized. For example, Pam worked at a retirement home as a nurse. For several months her boss had been continuously transferring her to different positions, placing her under the supervision of other employees who were less qualified than she was and also much younger. Often her boss would violently scream and torment her in front of other employees to the point where she could not get her work done because it was so distracting. Finally, Pam was forced to resign from her position because the constant disruption of being transferred as well as harassed on a daily basis was intolerable. Here, because the acts were continuous over an extended period of time, Pam’s Employment Attorney may be able to file suit against her employer for constructive discharge.
 
 
5.  “I quit” doesn’t necessarily mean no claim
 
                It would seem rational to assume that if an employee quits their job, they can’t turn around and sue their boss but that’s not always the case.  An employee quitting may be the end result of their employer’s behavior towards him or her in the workplace. If an employee decides to quit or resign due to the way in which they have been treated by their employer, under the law the resignation may be classified as a termination. For example, George, an agent at a real estate company made a complaint to his boss about illegal practices conducted by the company. After he made the complaint, George was demoted to a lower-paying position and was forced to move his desk into the break room. This put George at an extreme disadvantage on many levels and above all George felt humiliated which ultimately lead him to quit. Here, George was entitled to make a complaint about illegal practices at the workplace, therefore the demotion and moving his desk to the break room may all be forms of retaliation. George may also show he was constructively discharged because he was subjected to the demotion, lower pay, and his demotion was put on display for the whole agency to see in the break room. An employment lawyer may be able to decipher whether George has a claim again his employer.
 
 
                Although it seems like an employee may not have a claim against their employer because they quit their job, depending on the circumstances he or she may be classified as “fired” regardless. If the employer subjected the employee to an unbearable work environment, the employee needs to consult with a legal professional.  An employee who suspects they are heading down the path of constructive discharge should reach out to an Employment Attorney to discuss the facts of their case.

SEXUAL ASSAULT CASES CLIMBED CONSIDERABLY IN THE ARMED FORCES IN 2019

Sexual assault cases climbed considerably in the armed forces in 2019.

In response, the United States Defense Department issued a new directive that's meant to combat the serious issue of sexual harassment and assault.  The department plans to codify sexual assault as another military offense with stronger penalties. 

Of sexual assault and harassment have risen throughout the army with a recent study finding that documented cases rose from 4,800 in 2016 to over 6,050 in 2018.  Because high quantities of sexual assault across all segments of society go bankrupt, officials believe the actual number could be more than 20,000 instances for 2018.  This represents an alarming rise of 38 percent over the past two years.

Right to a Safe Workplace

Employees in all offices have the right to a safe workplace free of sexual harassmentand assault.  In the aftermath of this #MeToo movement across the USA, more attention has been paid into the often-hidden epidemic of sexual harassment and assault at work.  The U.S. Army has become the subject of frustration from lawmakers and advocates for a lack of adequate improvements to tackle it within its branches, in addition to the service academies.

1 recent report found that 43 percent of women who report sexual assault to army officials say the procedure resulted in unfavorable experiences for sufferers, including retaliatory harassment.  The Defense Secretary said that the difficulty undermines morale and trust and impacts military readiness.  Members of Congress known as the problem that an urgent one and advocated for Congressional supervision due to what they view as the failure from the Department of Defense to fight it.  The five military academies also found a shocking growth of almost 50 percent of sexual assault because of 2016, according to defense officials.

In the event that you have been the victim of workplace sexual harassment or assault, it's necessary to have strong legal representation from a proficient employment lawyer who will advocate for your rights.  Sexual harassment and assault in the workplace are violations of Title VII of the Civil Rights Act of 1964 and can include a variety of unwanted advances that make a hostile workplace.  Sexual assault is also a criminal action and the army has not released additional details of how they want to further prosecute criminals and increase penalties.

Many times, workers who are experiencing sexual harassment are advised to talk to their boss. 

As per a recent analysis, power and authority frequently contribute strongly to office gender dynamic and those interactions can turn toxic

Some of the eye-opening statistics found in the analysis include:

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One in three workers (36 percent ) have witnessed someone in a more effective position make the most of an individual in a less powerful position on the job

29 percent of women and 20% of men have experienced unwanted advances from a supervisor.  (The number rises to 35 percent for men and women aged 18-34.)

Nearly one in four women (24%) believe the endured career setbacks because they denied advances from somebody in authority.

57% of women and 39% of men would abandon their jobs when they discovered an executive in their company was providing privileges to workers in exchange for sexual favors

Sound Familiar?  Hers What to Do

Document the Behavior

Is crucial to record every improper event when constructing a case for sexual harassment.  Write down what occurred, what got mentioned, the time and day, and any relevant information.  Do it as soon as possible after an event occurs

Maintain your documentation in a safe place so no one in your office can find it

Speak to Human Resources

If you submit a claim for sexual harassment with your HR department, is on them to conduct an investigation.  Should you dot have a dedicated HR officer, then finds out was in charge of the majority of employee issues at your company.  This Individual Is Most Likely the person to take this problem to

Go On Your Boss Head

If your boss is your problem, you obviously cat report sexual harassment to these that you may consider reporting it to their supervisor

Speak to an Attorney

Becoming subject to an abusive boss puts you at a specially vulnerable position is essential to talk to a lawyer with a strong Comprehension of sexual harassment law

Your sexual harassment lawyer will be able to help you ascertain what really going on and whether it qualifies as sexual harassment under the law; record and handle the situation as efficiently as you can, and file a charge if needed.

ALL VICTIMS OF SEXUAL HARASSMENT

Half of the workers surveyed report that they ignore sexual harassment

People frequently stay quiet out of fear.

Believe it or not, a recent analysis demonstrated that over half of people have spoken after seeing seen sexual harassment in the workplace.

According to the survey, while 51 percent of both men and women surveyed say they know a girl who has been sexually harassed at work, 50% admit they have spoken after hearing a colleague make an inappropriate

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Comment about a person of the other gender

The reason?  In cases where sexual harassment is happening to someone else, the majority of people are certain what to do.  And, no doubt, fear of retaliation plays into this too.

Isn't an unfounded fear. 

But sexual harassment must be happening to you especially so as to make a complaint.  And both submitting a fee (even if is not about you) and intervening to protect a person from harassment have been legally protected actions.  If you discover yourself being retaliated against, you don't have recourse in court.

What Is Retaliation

If you find your employer doing any of the following matters following your reported sexual harassment, You Might Be a victim of retaliation:

- providing you a low-performance test

- Demoting you personally, transferring you to a less desirable place or occupation, or changing your schedule to hinder responsibilities you have outside of work

- Scrutinizing your workout more closely

- Threatening to report you to authorities

- Subjecting one to verbal or physical abuse

What Rights Do You Have as a Victim of Retaliation

 Many actions you take in reaction to sexual harassment are actually protected actions under the law, including:

- Filing a complaint about sexual harassment (whether or not you were the victim), or be a witness to such a fee

- Discussing sexual harassment using a manager

- Answering questions during an investigation of sexual harassment claims

- Declining to obey orders that would Lead to discrimination

- Turning down sexual improvements

- Stepping in to protect someone else from sexual harassment.

If yore engaging in the complaint procedure, that action is protected by EEOC law.  Other actions you might take are protected as long as you were acting under a reasonable belief that the behavior in question violates EEOC legislation

Not certain what to do about sexual harassment you seen in the workplace?  Can you suspect your employer may be retaliating against you?  If this the case, you require a lawyer.

 

The best Irvine sexual harassment lawyer who specializes in employment law can help you spot was going on, determine your rights, and protect yourself from workplace retaliation.

Sexual harassment was a widespread problem in the workplace for what has apparently been ages.

Unwanted and illegal interactions at work have been worrisome for generations.  Various studies have demonstrated that eight out of 10 women experienced sexual harassment in the workplace.  Women who suffered through this experience had reported psychological and physical problems, career development issues, lower wages, and other unwanted and dire effects Reporting

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Sexual harassment and its unwanted effects dissuade women from pursuing higher wages and positions.

The Collaborative Fund for Women's Security and Dignity was launched in hopes to end sexual harassment in the workplace.  It's been noted that 11 U.S. funders have dedicated $20 million to help combat this serious and repercussive problem.  The #MeToo motion has raised awareness of workplace discrimination and harassment to a global level.

Insight into the workplace environment was brought to the forefront, and it is not only women who are affected by sexual harassment.  Workplace discrimination and harassment have become a systemic problem for all people.  The Fund is dedicated to not only equal workplace rights for all sexes but also racial justice too.  It's usually unfamiliar that African American women are exposed to more sexual harassment and violence than others; in fact, the very first workplace sexual harassment lawsuits in the USA have been registered by African American women.  Discrimination and sexual harassment have intertwining qualities that influence women regardless of their race, age, or class.

The Fund looks for and supports solutions that have come from the people who experienced them.  The Fund will begin grant making this season and will look to benefit those in the community who want to make a difference and help end sexual harassment and violence toward women.  This includes movement leaders, networks, and associations who struggle for equal rights for women throughout the world.

EMAIL CHAIN UNCOVERS SEXUAL HARASSMENT CLAIMS

 

A current Microsoft employee email chain reveals girls sharing episodes of discrimination and sexual harassment, and today the company best human resources executive is acting.

Microsoft senior leadership is exploring all claims.  This is not the first time the tech giant has come under fire for sexual harassment.  In 2018, a class-action lawsuit claimed the 238 discrimination and sexual harassment complaints were managed by the business in a lackluster way.  

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Harassment, while 119 stated they had been victims of sex discrimination.  Three women said they had pregnancy discrimination, and eight girls claimed they had been retaliated against because they whined about their work situations.  The lawsuit also clarified the air at Microsoft as a beaus club.

Inquiry Leads to Mail Chain

The email chain began on March 20, when a female employee who had been stuck at the exact same job for six years asked about how to maneuver in the Microsoft company.   1 woman claimed she was given simple tasks on one project that included booking hotel rooms and taking notes at meetings.  Another woman claimed she was on a business trip with a man working for a partner company who threatened to kill her if she didn't perform sexual acts.  When she reported the incident to Human Resources (HR), she was told the man was just flirting, and there was nothing they could do since he didn't work for Microsoft.

A senior-level female employee who earned the name of Microsoft Partner claimed that she was asked to sit on the lap of another employee in a meeting before colleagues and HR.  When she cried and cited business policy, the man making the request said he did not have to listen to the coverage and repeated his request that she sit on his lap.  Employees commented that they found the thread educational and empowering.

Use of Derogatory Names

Apparently, using derogatory language at Microsoft toward female employees happened often.  Girls on the ribbon claimed the use of derogatory names against them was pervasive at the provider.  A female engineer who had worked at other significant firms said that wasn't something that she had elsewhere, but it was common at Microsoft.

Human Resources Responds

The female head of HR at Microsoft is taking the claims made on the email thread quite seriously.  She and the senior leadership team were sad and appalled that employees were dealing with these issues.  She informed people who suffered these demeaning experiences to contact her directly so that she can investigate the situation personally.

Sexual harassment has happened in the office for so long as men and women have worked together, but the #MeToo movement marks a sharp breaking point.

Strong men have lost their jobs as a result of sexual harassment.    In addition, local and state government

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Initiated a variety of new laws for combatting sexual harassment at work.

New Laws in Place

Since many anti-sexual harassment laws have happened on the state and local level, it is very important that employers and employees are aware of what constitutes sexual harassment.  Businesses are mandated to put anti-sexual harassment policies and coaching programs set up.   For a company, which means such obligations are public, and all employees, including future employees, can understand the circumstances, as well as business partners, shareholders, and clients.  Public disclosure incentivizes companies to make sure no form of sexual harassment is tolerated and criminals are dealt with as quickly as possible.  When confidentiality arrangements are set up, sexual harassers will continue to act inappropriately and not suffer consequences.

Promoting General Civility

Treating other people as you want to be treated is a historical idea.  Too many companies focus on the legal accountability surrounding sexual harassment and fail to promote an atmosphere of general civility in their workplaces.  A holistic approach to sexual harassment involves training policies and programs.  Just when employees respect each other and proactively work to prevent sexual harassment at work will this kind of behavior become something of the past.

Speech All Harassment

While sexual harassment receives the most attention, employers anti-harassment policies and training must also include other forms of harassment.  This includes age, race, disability, ethnicity, and religion.  Employer policies and training should make it clear that no kind of harassment is acceptable at work, and reporting procedures must prove straightforward.

In case you experienced sexual harassment or discrimination at work, an expert sexual harassment lawyer can assist.